Who Authored the Per Curiam Greenhouse Gas Opinion?

A panel may choose to publish an opinion per curiam rather than under a single judicial author’s name for more than one reason. A per curiam opinion focuses attention on the court as an institution rather than the personalities on the panel.  The appearance of speaking with one voice may add legitimacy to a decision. A very brief opinion may be published per curiam to indicate that it adds nothing to the Federal Reporter worthy of a byline.  And a lengthy opinion may be published per curiam when each of the panel members contributes a different section of the analysis.

That may be what happened in the Greenhouse Gas case [pdf]–really several consolidated cases involving multiple, separately briefed issues.  It would have made sense to assign the Endangerment Finding to Judge Tatel, the Tailpipe Rule to Chief Judge Sentelle, and the Timing and Tailoring Rules to Judge Rogers, for example.

But if I had to guess a single author of the opinion, I would point to Judge Tatel.  The issue is one he had written about before. And the opinion has no footnotes, which is unusual for such a long opinion but characteristic of Judge Tatel, who never uses them.

Just a guess.

Until I know better, I’ll be giving Judge Tatel credit for the first citation to Schoolhouse Rock in a federal appellate opinion:

To establish standing, plaintiffs must demonstrate that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision,” but here, State Petitioners simply hypothesize that Congress will enact “corrective legislation.” We have serious doubts as to whether, for standing purposes, it is ever “likely” that Congress will enact legislation at all. After all, a proposed bill must make it through committees in both the House of Representatives and the Senate and garner a majority of votes in both chambers—overcoming, perhaps, a filibuster in the Senate. If passed, the bill must then be signed into law by the President, or go back to Congress so that it may attempt to override his veto. As a generation of schoolchildren knows, “by that time, it’s very unlikely that [a bill will] become a law. It’s not easy to become a law.” Schoolhouse Rock, I’m Just a Bill, at 2:41.

Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322 (per curiam, joined by Sentelle, C.J., Rogers & Tatel, JJ.)


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